For employers, the cases are a mixed bag but do provide some useful practice pointers.

City Sheriff Was Not an “Employee” Entitled to Statutory Protection

In Young v. Bridgeport, the Court ruled that a plaintiff could not proceed with his whistle-blower retaliation claims because he was an independent contractor, and not an employee. Because only “employees” can bring a cause of action under Conn. Gen. Stat. 31-51m and 31-51q (claims for whistle blowing and free speech protection), the court lacked jurisdiction over the claim.

So what was the Plaintiff’s position? He was a City sheriff, elected to hold office for a term of two years, and had held the position for approximately 18 years. Notably, City sheriffs have no affirmative duties, have no scheduled work hours or office space in a city building, but may serve process on behalf of the city, private entities or even individuals. This, in the court’s view, was not enough to satisfy the employee-control test outlined by the Court in 2004 in the Nationwide Mutual Ins. Co. v. Allen case.

For employers, it’s another reminder of the importance of clear rules of who is an employee and who is an independent contractor. It can be the difference between a claim going forward and a claim being dismissed.

Failure to Return Personnel Belongings Promptly May Be Retaliatory

In Eagen v. CHRO, an UConn attorney who specialized in labor & employment law, unsuccessfully appealed a finding that he had retaliated against a former university laboratory animal veterinarian for whistle blowing activities. For me, the most notable part is that the veterinarian’s name is — get this — “Daniel Schwartz”. (To be perfectly clear, that is an entirely different Dan Schwartz and has no relation to me.) But of course, there’s more to the case than the name.

It’s an unusual decision. At the CHRO, a Human Rights Referee awarded Schwartz $5000 in emotional distress damages for the attorney’s actions in failing to return all of Schwartz’ personal belongings following termination. The court said that failure to return the belongings could be seen as being an “personnel action”, which the court interpreted as the same as an “employment action”.

For employers, this case has some significant implications if the logic is upheld. Typically, the employee’s employment termination will “end” the type of actions that can be viewed by an employer as retaliatory. But here, the Court suggested that the failure to return personnel belongings could be viewed as retaliation for the actions of the employee and that it may have a chilling effect on other whistle-blowers.

Look to the “Adverse Employment Action” Date to Determine if Employee is “Qualified Individual”

Lastly, but perhaps just as significantly, the Court decided Tomick v. UPS upholding most of a $500K+ verdict against the employer but also sending part of the case back for further consideration. The case has a long and tortured history and also a complicated background. Frankly, it’s a mess try to briefly recap in a blog post.

Among the issues the court decided was whether an employer’s request of an employee to take a drug test without reasonable suspicion violates Connecticut’s drug testing statute, regardless of whether the employee actually takes the test. The Court concluded that the mere fact that the request was made was sufficient to give rise to a claim, at least given the circumstances of the case.

The court also answered a question that has been out there on disability discrimination cases. Someone has to be a “qualified individual” in order to fall within the the state’s disability anti-discrimination laws. But what is the proper date for making that determination. The employer argued that the relevant date is the date of the adverse employment action, not the date when the termination process occurred or began. The court agreed. Notably and by contrast, when evaluating a claim of negligent infliction of emotional distress, the relevant inquiry is whether the employer’s conduct was unreasonable during the “termination process.” On this issue, the Court remanded the case back to the Superior Court for further findings.

The court also examined attorneys’ fees and emotional distress damages and upheld them as well.

For employers, the case emphasizes the need of employers to seek legal counsel the instant an employment situation seems complicated. The facts of this case show things moving at a rapid pace. In addition, it’s important for employers to consider the termination process as well; be fair and respectful to avoid possible “emotional distress” claims later on.

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